Thayer v. Smoky Hollow Coal Co.

Ladd, J.

The petition alleged in substance that the plaintiff, while passing along a cross-entry in a coal mine in quest of a car, pn October 15, 1900, was injured by the fall of slate from the roof, without fault on his part, owing to negligence of the defendant in “ allowing and permitting said cross-entry K to become and remain in an unsafe and dangerous condition, and in failing and omitting properly to support the roof thereof with timbers or otherwise as required by law, rendering it reasonably secure against falls of slate.” The answer put these allegations in issue, and on the former appeal we held that, in the absence of an allegation of negligence on the part of defendant in failing to make inspection of the roof or in not discovering defects therein, it was not to be inferred from evidence that slate will usually hang from three to six days after it begins to detach itself from the roof, that the slate in this • roof would have hung that long after it begun to detach, and from this inference that defendant knew of the defect in time to repair and avoid the injury, and, for this reason, that there was not sufficient evidence to carry the case to the jury on that issue. 121 Iowa, 121 . Procedendo issued, and when the cause was redocketed in the district court December 16, 1903, the plaintiff filed a substituted petition. On April 15, 1904, the defendant interposed the plea of the statute of limita *552 tions by way of demurrer, and on tbe following day plaintiff withdrew his substituted petition and filed an amendment to the original petition, averring that defendant was negligent in omitting to properly inspect the roof, and that by the exercise of ordinary care it would have ascertained the-condition of the roof in time to have repaired the same before the slate fell. This was filed more than two years subsequent to the accident, and defendant demurred to the amendment on the ground that it brought into the cáse a new cause of action, barred by the statute of limitations.

1. changeof tioSs.limita' We do not think the. additional allegations contained in the amendment alone constituted a cause of action. Even though there were a failure to properly inspect, and defendant had been chargeable with knowledge 0f the defect, these alone would not entitle plaintiff to recover. There must have been something more, as an omission to warn of the danger in making use of the entry or á negligent omission to repair before the accident occurred. But how could the defendant have been derelict in this if not charged with knowledge of the defective condition of the roof ? This was necessarily involved in the negligence on which plaintiff grounded his cause of action stated in the original petition, and the only effect of the amendment was to amplify or more fully state this cause of action. As said in Kuhns v. Ry., 76 Iowa, 67 : “ In the original petition certain acts of negligence are specified. In the amendment certain other specifications of negligence are pleaded. But the cause of action is the same. . . . We are very clearly of the opinion that the statement of additional grounds of negligence is not a new cause of action. There is no departure from the original petition in the time, place, and circumstance of the casualty.” Had there been a judgment rendered on the original petition, it. would have been a bar to any recovery on the petition as amended, for in each instance the injury is alleged to have been the proximate result of *553 tbe negligent omission to repair. This is generally regarded as a fair test of whether an amendment states a new cause of action. Van Patten v. Waugh, 122 Iowa, 302 . As said in Hutchinson v. Ainsworth, 73 Cal. 452 , ( 15 Pac. 82 , 2 Am. St. Rep. 823 :) “ The facts upon which the plaintiff’s right to sue is based and upon which the defendant’s duty has arisen, coupled with ifie facts which constitute the latter’s wrong, make up the cause of action.” New facts are alleged for saying the defendant was negligent in omitting to repair the roof, .but not another and distinct cause of action.

2. Substituted withdrawai: amendment. II. The defendant moved to strike the amendment on the ground that, as a substituted petition had been filed, there remained no petition in the case to amend. This motion was overruled. Appellant first contends that, the filing of the substituted petition 0perated as an abandonment of the original petition, so that it ceased to be a part of the pleadings in the case. Some expressions of this kind may be found in the reports, but upon examination it will be ascertained that in none had the amended or substituted pleading been withdrawn, and that all the decisions relied on relate to the determination of the issues being tried or to ‘whether the admissions contained in the superseded pleadings may be considered without their introduction in evidence. See Bates v. Kemp, 12 Iowa, 99 ; Brenner v. Gundershiemer, 14 Iowa, 82 ; Lauman v. County of Des Moines, 29 Iowa, 310 ; Mulligan v. Railway, 36 Iowa, 181 ; Mowry v. Wareham, 101 Iowa, 28 ; State v. Simpkins, 77 Iowa, 677 ; Longley v. McVey, 109 Iowa, 666 ; Shipley v. Reasoner, 87 Iowa, 555 ; Leach v. Hill, 97 Iowa, 81 ; L udwig v. Blackshere, 102 Iowa, 366 ; Williams v. Williams, 115 Iowa, 520 ; Marshall Field Co. v. O. Ruffcorn Co., 117 Iowa, 157 ; Redhead v. Bank, 123 Iowa, 336 .

Section 3603 of the Code, after directing that changes ' in pleadings shall be effected by filing separate papers, pro *554 vides that, “ if it he stated in such paper that it is a substitute for the former pleading intended to be amended, it shall be so taken, but the pleading superseded by the substitute shall not be withdrawn from the files.” If, however, the substituted pleading is withdrawn, it ceases to be a substitute, and no longer supersedes that previously filed. The original petition continued on file, and when the substituted petition was withdrawn the record was precisely as before it was filed. The petition had not been dismissed. Something else had taken its place, and when that was removed it ceased to be superseded, and was reinstated as effectually as though there had never been a substituted petition. As thus reinstated it was subject to amendment as to any cause of action stated therein. Taylor v. Taylor, 110 Iowa, 207 . Both'rulings were right, and they are affirmed.